7.  The applicant was born in 1957 and lives in Kyiv.
8.  In 1983 the applicant was appointed to the post of judge of a district court. At the material time, domestic law did not require judges to take an oath upon taking office.
9.  On 5 June 2003 the applicant was elected to the post of judge of the Supreme Court.
10.  On 2 December 2005 he was also elected Deputy President of the Council of Judges of Ukraine (a body of judicial self-governance).
11.  On 30 March 2007 the applicant was elected President of the Military Chamber of the Supreme Court.
12.  On 26 June 2007 the Assembly of Judges of Ukraine found that another judge, V.P., could no longer act as a member of the HCJ and that her office should be terminated. V.P. challenged that decision before the courts. She further complained to the Parliamentary Committee on the judiciary (Комітет Верховної Ради України з питань правосуддя)[1] (“the Parliamentary Committee”) in relation to the matter.
13.  On 7 December 2007 the Assembly of Judges of Ukraine elected the applicant to the post of member of the HCJ and asked Parliament to arrange for the applicant to take the oath as a member of the HCJ in order to allow him to take up office, as required by section 17 of the HCJ Act 1998. A similar proposal was also submitted by the President of the Council of Judges of Ukraine.
14.  In reply, the Chairman of the Parliamentary Committee, S.K., who was also a member of the HCJ, informed the Council of Judges of Ukraine that that issue had to be carefully examined together with V.P.’s submissions alleging that the decision of the Assembly of Judges of Ukraine to terminate her office as a member of the HCJ had been unlawful.
15.  The applicant did not assume office as a member of the HCJ.
16.  Meanwhile, S.K. and two members of the Parliamentary Committee lodged requests with the HCJ, asking that it carry out preliminary inquiries into possible professional misconduct by the applicant, referring, among other things, to V.P.’s complaints.
17.  On 16 December 2008 R.K., a member of the HCJ, having conducted preliminary inquiries, lodged a request with the HCJ asking it to determine whether the applicant could be dismissed from the post of judge for “breach of oath”, claiming that on several occasions the applicant, as a judge of the Supreme Court, had reviewed decisions delivered by Judge B., who was his relative, namely his wife’s brother. In addition, when participating as a third party in proceedings instituted by V.P. (concerning the above-mentioned decision of the Assembly of Judges of Ukraine to terminate her office), the applicant had failed to request the withdrawal of the same judge, B., who was sitting in the chamber of the court of appeal hearing that case. On 24 December 2008 R.K. supplemented his request by giving additional examples of cases which had been determined by Judge B. and then reviewed by the applicant. Some of the applicant’s actions which served as a basis for the request dated back to November 2003.
18.  On 20 March 2009 V.K., a member of the HCJ, having conducted preliminary inquiries, lodged another request with the HCJ seeking the applicant’s dismissal from the post of judge for “breach of oath”, claiming that the applicant had committed a number of gross procedural violations when dealing with cases concerning corporate disputes involving a limited liability company. Some of the applicant’s actions which served as a basis for the request dated back to July 2006.
19.  On 19 December 2008 and 3 April 2009 these requests were communicated to the applicant.
20.  On 22 March 2010 V.K. was elected President of the HCJ.
21.  On 19 May 2010[2] the HCJ invited the applicant to a hearing on 25 May 2010 concerning his dismissal. In a reply of 20 May 2010[3], the applicant informed the HCJ that he could not attend that hearing as the President of the Supreme Court had ordered him to travel to Sevastopol from 24 to 28 May 2010 to provide advice on best practice to a local court. The applicant asked the HCJ to postpone the hearing.
22.  On 21 May 2010 the HCJ sent a notice to the applicant informing him that the hearing concerning his dismissal had been postponed until 26 May 2010. According to the applicant, he received the notice on 28 May 2010.
23.  On 26 May 2010 the HCJ considered the requests lodged by R.K. and V.K. and adopted two decisions on making submissions to Parliament to have the applicant dismissed from the post of judge for “breach of oath”. V.K. presided at the hearing. R.K. and S.K. also participated as members of the HCJ. The applicant was absent.
24.  The decisions were voted on by the sixteen members of the HCJ who were present, three of whom were judges.
25.  On 31 May 2010 V.K., as President of the HCJ, introduced two submissions to Parliament for the dismissal of the applicant from the post of judge.
26.  On 16 June 2010, during a hearing presided over by S.K., the Parliamentary Committee examined the HCJ’s submissions concerning the applicant and adopted a recommendation for his dismissal. The members of the Committee who had requested that the HCJ conduct preliminary inquiries in respect of the applicant also voted on the recommendation. In addition to S.K., another member of the Committee had previously dealt with the applicant’s case as a member of the HCJ and had subsequently voted on the recommendation as part of the Committee. According to the file as it stood on the date of the Court’s deliberations,[4] the applicant was absent from the Committee hearing.
27.  On 17 June 2010 the HCJ’s submissions and the recommendation of the Parliamentary Committee were considered at a plenary meeting of Parliament. The floor was given to S.K. and V.K., who reported on the applicant’s case. The applicant was present at the meeting. After deliberation, Parliament voted for the dismissal of the applicant from the post of judge for “breach of oath” and adopted a resolution to that effect.
28.  According to the applicant, during the electronic vote, the majority of Members of Parliament (MPs) were absent. The MPs present used voting cards which belonged to their absent peers. Statements by MPs about the misuse of voting cards and a video recording of the relevant part of the plenary meeting have been submitted to the Court.
29.  The applicant challenged his dismissal before the HAC. The applicant claimed that: the HCJ had not acted independently and impartially; it had not properly informed him of the hearings in his case; it had failed to apply the procedure for dismissal of a judge of the Supreme Court provided for in Chapter 4 of the HCJ Act 1998, which offered a set of procedural guarantees such as notification of the judge concerned about the disciplinary proceedings and his active participation therein, a time frame for the proceedings, secret ballot voting, and a limitation period for disciplinary penalties; the HCJ’s findings had been unsubstantiated and unlawful; the Parliamentary Committee had not given him a hearing and had acted in an unlawful and biased manner; and Parliament had adopted a resolution on the applicant’s dismissal in the absence of a majority of the MPs, which was in breach of Article 84 of the Constitution, section 24 of the Status of Members of Parliament Act 1992 and Rule 47 of the Rules of Parliament.
30.  The applicant therefore requested that the impugned decisions and submissions made by the HCJ and the parliamentary resolution be declared unlawful and quashed.
31.  In accordance with Article 171-1 of the Code of Administrative Justice (“the Code”), the case was allocated to the special chamber of the HAC.
32.  The applicant sought the withdrawal of the chamber, claiming that it was unlawfully constituted and that it was biased. His application was rejected as unsubstantiated. According to the applicant, a number of his requests for various pieces of evidence to be collected and admitted and for witnesses to be summoned were rejected.
33.  On 6 September 2010 the applicant supplemented his claim with the statements of MPs about the misuse of voting cards during the vote on his dismissal and a video recording of the relevant part of the plenary meeting.
34.  After several hearings, on 19 October 2010 the HAC considered the applicant’s claim and adopted a judgment. It found that the applicant had taken up the office of judge in 1983, when domestic law had not envisaged the taking of an oath by a judge. The applicant had, however, been dismissed for a breach of the fundamental standards of the judicial profession, which were set forth in sections 6 and 10 of the Status of Judges Act 1992 and had been legally binding at the time of the actions committed by the applicant.
35.  The court further found that the HCJ’s decision and submission made in respect of R.K.’s request had been unlawful, because the applicant and Judge B. had not been considered relatives under the legislation in force at the material time. In addition, as to the proceedings in relation to which the applicant had been a third party, he had had no obligation to seek the withdrawal of Judge B. However, the HAC refused to quash the HCJ’s acts in respect of R.K.’s request, noting that in accordance with Article 171-1 of the Code it was not empowered to take such a measure.
36.  As regards the decision and submission made by the HCJ in respect of V.K.’s request, they were found to be lawful and substantiated.
37.  As to the applicant’s contentions that the HCJ should have applied the procedure provided for in Chapter 4 of the HCJ Act 1998, the court noted that in accordance with section 37 § 2 of that Act that procedure applied only to cases involving such sanctions as reprimands or downgrading of qualification class. Liability for “breach of oath” in the form of dismissal was envisaged by Article 126 § 5 (5) of the Constitution and the procedure to be followed was different, namely the one described in section 32 of the HCJ Act 1998, contained in Chapter 2 of that Act. The court concluded that the procedure cited by the applicant did not apply to the dismissal of a judge for “breach of oath”. There had therefore been no grounds to apply the limitation periods referred to in section 36 of the Status of Judges Act 1992 and section 43 of the HCJ Act 1998.
38.  The court then found that the applicant had been absent from the hearing at the HCJ without a valid reason. It further noted that there had been no procedural violations in the proceedings before the Parliamentary Committee. As to the alleged procedural violations at the plenary meeting, the parliamentary resolution on the applicant’s dismissal had been voted for by the majority of Parliament and this had been confirmed by roll-call records. The court further noted that it was not empowered to review the constitutionality of the parliamentary resolutions, as this fell within the jurisdiction of the Constitutional Court.
39.  The hearings at the HAC were held in the presence of the applicant and the other parties to the dispute.
40.  On 22 December 2004 the President of Ukraine, in accordance with section 20 of the Judicial System Act 2002, appointed Judge P. to the post of president of the HAC.
41.  On 16 May 2007 the Constitutional Court found that section 20(5) of the Judicial System Act 2002, concerning the procedure for appointing and dismissing presidents and deputy presidents of the courts by the President of Ukraine, was unconstitutional. It recommended that Parliament adopt relevant legislative amendments to regulate the issue properly.
42.  On 30 May 2007 Parliament adopted a resolution introducing a temporary procedure for the appointment of presidents and deputy presidents of the courts. The resolution provided the HCJ with the power to appoint the presidents and deputy presidents of the courts.
43.  On the same date, the applicant challenged the resolution before the court claiming, inter alia, that it was inconsistent with the HCJ Act 1998 and other laws of Ukraine. The court immediately delivered an interlocutory decision suspending the effect of the resolution.
44.  On 31 May 2007 the Council of Judges of Ukraine, having regard to the legislative gap resulting from the Constitutional Court’s decision of 16 May 2007, adopted a decision assigning itself temporary power to appoint the presidents and deputy presidents of the courts.
45.  On 14 June 2007 the parliamentary gazette published an opinion by the Chairman of the Parliamentary Committee, S.K., stating that the local courts had no power to review the above-mentioned resolution of Parliament and that the judges reviewing that resolution would be dismissed for “breach of oath”.
46.  On 26 June 2007 the Assembly of Judges of Ukraine endorsed the decision of the Council of Judges of Ukraine of 31 May 2007.
47.  On 21 February 2008 the court reviewing the parliamentary resolution quashed it as unlawful.
48.  On 21 December 2009 the Presidium of the HAC decided that Judge P. should continue performing the duties of president of the HAC after the expiry of the five-year term provided for in section 20 of the Judicial System Act 2002.
49.  On 22 December 2009 the Constitutional Court adopted a decision interpreting the provisions of section 116(5)(4) and section 20(5) of the Judicial System Act 2002. It found that those provisions were only to be understood as empowering the Council of Judges of Ukraine to give recommendations for the appointment of judges to administrative posts by another body (or an official) defined by the law. The court further obliged Parliament to comply immediately with the decision of 16 May 2007 and to introduce relevant legislative amendments.
50.  On 24 December 2009 the Conference of Judges of the Administrative Courts decided that Judge P. should continue to act as President of the HAC.
51.  On 25 December 2009 the Council of Judges of Ukraine quashed the decision of 24 December 2009 as unlawful and noted that, by virtue of section 41(5) of the Judicial System Act 2002, the First Deputy President of the HAC, Judge S., was required to perform the duties of president of that court.
52.  On 16 January 2010 the General Prosecutor’s Office issued a press release noting that the body or public official empowered to appoint and dismiss presidents of the courts had not yet been specified in the laws of Ukraine, while the Council of Judges of Ukraine was only entitled to give recommendations on those issues. Judge P. had not been dismissed from the post of president of the HAC and therefore continued to occupy it lawfully.
53.  Judge P. continued to act as President of the HAC.
54.  On 25 March 2010 the Constitutional Court found that the parliamentary resolution of 30 May 2007 was unconstitutional.
55.  The Chamber of the HAC dealing with the cases referred to in Article 171-1 of the Code was set up in May and June 2010 through the use of the procedure provided for in section 41 of the Judicial System Act 2002.